Michigan State A. Philip Randolph Institute et al v. Johnson

Filing
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHIGAN STATE A. PHILIP RANDOLPH
INSTITUTE, MARY LANSDOWN,
ERIN COMARTIN and DION WILLIAMS,
Case No. 16-cv-11844
Plaintiffs,
v.
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
RUTH JOHNSON, in her official capacity
as Michigan Secretary of State,
UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB
Defendant.
/
OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY
INJUNCTION [4]
I. INTRODUCTION
Plaintiffs Mary Lansdown, Erin Comartin, Dion Williams, and the Michigan
State A. Philip Randolph Institute (“Plaintiffs”) commenced this action against the
Michigan Secretary of State, Ruth Johnson (“Defendant”) on May 24, 2016. See
Dkt. No. 1. Plaintiffs allege that the passage of Public Act 268 (“P.A. 268”)
impermissibly burdens the right to vote under the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution, and the Voting Rights Act, 52
U.S.C. § 10301.
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On May 27, 2016, Plaintiffs filed a Motion for a Preliminary Injunction, to
prevent the enforcement of P.A. 268. A hearing was held on July 14, 2016 at 11:00
a.m. The matter is fully briefed. For the reasons discussed below, the Court will
GRANT the preliminary injunction.
II. BACKGROUND
The current litigation centers on legislation to ban “straight-party voting” on
Michigan ballots. Straight-party voting allows citizens to vote for all of the partisan
candidates of a particular party by filling a single bubble on their ballot. The most
common reasoning behind the use of straight-party voting is that it reduces the
amount of time needed to complete a ballot. Dkt. No. 4 at 19 (Pg. ID No. 336).
Voters in Michigan have had the option to cast a straight-party vote for the
last 125 years. Complaint, ¶ 23. However, there have been several attempts to
abolish the practice. First in 1964, the Michigan Legislature enacted P.A. 240.
However, during the November 1964 election, the citizens rejected P.A. 240 via
referendum. In 2001, the Legislature tried again with P.A. 269. However, the law
was again struck down by voters.
Most recently, on January 20, 2015, Senator Marty Knollenberg introduced
Senate Bill 13 to eliminate straight-party voting in Michigan. The Legislature
passed P.A. 268 on December 16, 2015. On January 5, 2016, Governor Snyder
signed P.A. 268 into law. P.A. 268 will go into effect for the first time in the
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November 2016 U.S. Presidential Election. Attached to P.A. 268 is an
appropriation, thereby blocking a referendum. See Michigan United Conservation
Clubs v. Secretary of State, 464 Mich. 359 (2001).
The new ballots for the 2016 election look identical to the 2014 ballots,
except that the section for straight-party voting has been removed. Critically
however, the new 2016 ballots still contain vignettes of the major political parties,
thus raising further concerns about voter confusion. Complaint, ¶ 3.
There is no dispute that straight-party voting helps to save time in the voting
process. Several elections officials in Oakland County, Detroit and Lansing have
filed affidavits asserting that the elimination of straight-party voting will increase
line lengths and waiting times for voters. Complaint (Exhibit 14). They claim they
are most concerned with wait times in urban settings, predominantly populated by
African-American voters.
Kurt Metzger, a Regional Information Specialist with the U.S. Census
Bureau in Detroit, Michigan, conducted an analysis (the “Metzger Report”) of the
likely impact of P.A. 268 on African-American and white voters. See Complaint
(Exhibit 10). In addition, the Metzger Report also provided an analysis of
socioeconomic, housing and voting data for Michigan. Id.
Metzger acquired the voting results by precinct for nine of the largest
counties in Michigan for which straight-party voting data were available. These
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counties included Genesee, Ingham, Kalamazoo, Kent, Macomb, Muskegon,
Oakland, Saginaw and Wayne. Id. (Pg. ID No. 224). Metzger also used 2010
Census data on the racial/ethnic composition of the voting age population for all
communities within the nine counties. Id. The Metzger Report found that there was
a direct correlation between the use of straight-party voting within a community
and the African-American population within that community. Generally, as the
African-American population increases in a county, so does the use of straightparty voting.
Within the county data, Metzger documented the voting patterns of each
city. Metzger found fifteen cities in Michigan with a straight-party voting rate of
about 65% or higher. Metzger Report, Appendix A. Of those fifteen cities, only
two, Hamtramck and Mount Morris, were majority white. Id. The five cities with
straight-party voting rates greater than 75%, were all majority African American.
Id.
City
Percent Black Percent Straight-Party Vote in 2014
Royal Oak Charter Township
95.6%
82.1%
Highland Park
93.1%
82.0%
Detroit City
82.3%
75.5%
Inkster City
70.8%
78.2%
Flint City
53.4%
75.2%
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Id. In fact, although the average straight-party voting rate in Michigan is about
50%, the straight-party voting rate in African-American majority districts was 67%
in 2012, and 73.5% in 2014. Id.
From this finding, Metzger concluded that African-American voters were
much more likely to use straight-party voting than white voters, and that P.A. 268
would have a larger impact on African-American populations than white ones. Id.
(Pg. ID No. 231).
III. LEGAL STANDARD
Temporary restraining orders and preliminary injunctions are extraordinary
remedies designed to protect the status quo pending final resolution of a lawsuit.
See University of Texas v. Camenisch, 451 U.S. 390 (1981); Bonnell v. Lorenzo,
241 F.3d 800, 808 (6th Cir. 2001) (finding that preliminary injunctive relief “is an
extraordinary measure that has been characterized as ‘one of the most drastic tools
in the arsenal of judicial remedies.’ ”). Whether to grant such relief is a matter
within the discretion of the district court. Certified Restoration Dry Cleaning
Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007).
The same
factors are considered in determining whether to grant a request for either a
temporary restraining order or a preliminary injunction. See Sandison v. Michigan
High School Athletic Assoc., 64 F.3d 1026, 1030 (6th Cir. 1995).
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The four factors that must be balanced and considered before the court may
issue a temporary restraining order or preliminary injunction include: (1) the
likelihood of the plaintiff’s success on the merits; (2) whether the plaintiff will
suffer irreparable injury without the injunction; (3) the harm to others which will
occur if the injunction is granted; and (4) whether the injunction would serve the
public interest. Certified Restoration, 511 F.3d at 542; In re Eagle-Pitcher
Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); N.A.A.C.P. v. City of Mansfield,
Ohio, 866 F.2d 162, 166 (6th Cir. 1989).
“None of these factors, standing alone, is a prerequisite to relief; rather, the
court should balance them.” Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th
Cir. 1996). Nevertheless, in this Circuit “a finding that there is simply no
likelihood of success on the merits is usually fatal.” Gonzales v. Nat'l Bd. of Med.
Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000).
IV. DISCUSSION
In response to Plaintiffs’ motion, the Defendant makes several arguments for
its denial. First, the Defendant argues that the doctrine of laches should apply.
Second, the Defendant argues that the Court should abstain from ruling on this
matter under the Burford doctrine. Third, the Defendant argues that there is no
federal subject matter jurisdiction. Fourth, the Defendant argues that the Plaintiffs
lack standing to bring their claims. Finally, the Defendant argues that the four
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factors considered when analyzing a motion for preliminary injunction favor the
Defendant. The Court shall address each argument in turn.
A. Laches
Defendant argues that Plaintiffs’ claim should be dismissed under the
doctrine of laches. This argument is without merit. P.A. 268 was signed into law
on January 5, 2016. Plaintiffs brought this lawsuit on May 24, 2016 and filed a
Motion for Preliminary Injunction three days later. The election does not take place
until November. Defendant has failed to show that any actions have been taken
that would justify barring this claim under the doctrine of laches. Defendant has
also failed to produce evidence that the Plaintiffs purposefully delayed, or
exhibited a lack of diligence. Accordingly, this argument fails. See Ohio State
Conference of NAACP v. Husted, 768 F.3d 524, 538 (6th Cir. 2014) (“Husted II”);
see also Ohio Organizing Collaborative v. Husted, No. 2:15-cv-1802, 2016 WL
3248030 at *12 (S.D. Ohio May 24, 2016).
B. The Burford Abstention Doctrine
Defendant next argues that the Court should abstain from hearing the case
under the Burford doctrine. Dkt. No. 20 at 13 (Pg. ID No. 548). This argument is
also without merit.
The Supreme Court has explained that “Burford abstention is appropriate
where timely and adequate state-court review is available and (1) a case presents
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‘difficult questions of state law bearing on policy problems of substantial public
import whose importance transcends the case at bar,’ or (2) the ‘exercise of federal
review of the question in a case and in similar cases would be disruptive of state
efforts to establish a coherent policy with respect to a matter of substantial public
concern.’ ” Caudill v. Eubanks Farms, Inc., 301 F.3d 658, 660 (6th Cir. 2002)
(quoting New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491
U.S. 350, 361 (1989)). The decision of whether to abstain is a matter of judicial
discretion. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 718 (1996). The
doctrine should be applied narrowly. Id. at 728.
The present matter does not involve a state law claim. Plaintiffs have only
alleged federal claims. See Complaint, at 18–21 (Pg. ID No. 18–21). Moreover,
federal review of similar cases has never been overly disruptive of state efforts to
develop a coherent voting policy. See Sandusky County Democratic Party v.
Blackwell, 387 F.3d 565 (6th Cir. 2004); Obama for America v. Husted, 697 F.3d
423 (6th Cir. 2012); League of Women Voters of Ohio v. Brunner, 548 F.3d 463
(6th Cir. 2008). Moreover, “Burford abstention should be denied where
constitutional violations are alleged,” as they are here. Warf v. Board of Elections
of Green County, Ky., No. 1:08–CV–72–R, 2009 WL 530666, *3 (W.D. Ky.
March 3, 2009). Accordingly, this argument fails.
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C. Federal Subject Matter Jurisdiction
Defendant argues that there is no federal subject matter jurisdiction because
the U.S. Constitution authorizes the states to prescribe the time, places, and manner
of holding elections. Dkt. No. 20 at 15–17 (Pg. ID No. 550–552). The Court
disagrees. The states are authorized to regulate elections, but that authorization
does not allow states to violate the Constitutional rights of citizens. The federal
court clearly has jurisdiction to decide the issue of whether a state law
unconstitutionally infringes on a citizen’s right to vote. See Sandusky, 387 F.3d at
574.
D. Standing
“Before bringing a case in federal court, a plaintiff must establish standing to
do so.” Klein v. U.S. Dept. of Energy, 753 F.3d 576, 579 (6th Cir. 2014). The law
of Article III standing “serves to prevent the judicial process from being used to
usurp the powers of the political branches.” Id. (citing Clapper v. Amnesty Int’l
USA, 133 S.Ct. 1138, 1146 (2013)). “To establish Article III standing, a plaintiff
must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the
injury and the conduct complained of,’ and (3) a ‘likelihood’ that the injury ‘will
be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, 134
S.Ct. 2334, 2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)).
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a. Injury-in-Fact
“An injury sufficient to satisfy Article III must be ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id.
(quoting Lujan, 504 U.S. at 560). “An allegation of future injury may suffice if the
injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will
occur.’ ” Id. (quoting Clapper, 133 S.Ct. at 1148).
Defendant argues that Plaintiffs have not pled any concrete or particularized
injuries. Dkt. No. 20 at 19 (Pg. ID No. 552). Defendant contends that “Plaintiffs
raise only general grievances regarding what may occur to every voter in the
State.” Id. Defendant also argues that “any alleged injury that the elimination of
straight-party voting creates is pure speculation.” Dkt. No. 20 at 17 (Pg. ID No.
552). Therefore, Defendant contends the claim should be dismissed under Lance v.
Coffman, 549 U.S. 437, 441 (2007). The Court disagrees.
In Lance, four Colorado voters filed a complaint alleging that “Article V,
§ 44 of the Colorado Constitution . . . violated [the Elections Clause] of the U.S.
Constitution by depriving the state legislature of its responsibility to draw
congressional districts.” Id. The Supreme Court found that “[t]he only injury
plaintiffs allege[d] is that the law—specifically the Elections Clause—[had] not
been followed.” Id. at 442. The Lance court held that the Plaintiffs held “no
particularized stake” in the litigation, and thus did not have standing.
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The allegations in this case are different. Plaintiffs have not alleged general
grievances applicable to every voter in the state. Here, Plaintiffs allege that P.A.
268 will disproportionately impact African-Americans in urban areas in the form
of longer wait times. Complaint at ¶ 54. Therefore, Plaintiffs Mary Lansdown and
Dion Williams—who are African-American, and live in the predominantly
African-American cities of Flint and Detroit, Michigan, respectively—do have a
stake in the litigation, as the alleged harm would disproportionately impact them.
Furthermore, Plaintiffs have submitted an expert report that corroborates these
allegations. Therefore, the harms are not speculative.
Moreover, the fact that the alleged harm has yet to materialize is not
dispositive in this case. “[C]ourts have continued to recognize that the increased
risk of harm constitutes an injury sufficient to support standing.” Stewart v.
Blackwell, 444 F.3d 843, 844 (6th Cir. 2006); see also Metro-North Commuter R.
Co. v. Buckley, 521 U.S. 424 (1997) (considering the merits of asbestos-related
claims brought by a plaintiff who had yet to manifest symptoms asbestos-related
disease).
In the voting context, the Sixth Circuit has recognized that voters can have
standing based on an increased risk that their voting rights will be infringed.
Sandusky, 387 F.3d at 574. In Sandusky, the Sixth Circuit held that the Sandusky
County Democratic Party had standing to bring a claim on behalf of Michigan
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voters. The organization alleged that the Secretary of State’s directives regarding
provisional ballots in Ohio elections violated the Help America Vote Act
(“HAVA”). The Act allowed voters to cast provisional ballots in those instances
where their names could not be located on the list of qualified voters. Id. at 569.
The Secretary of State issued a directive that would prohibit voters from casting
provisional votes unless the poll worker was able to confirm that the voter was
eligible to vote in that specific context. Id. at 571. The plaintiffs argued that the
directive violated the HAVA because the directive would allow “poll workers to
withhold a provisional ballot from anyone who is not—according to the poll
worker’s on-the-spot determination at the polling place—a resident of the precinct
in which the would-be voter desires to cast a provisional ballot.” Id.
The Sixth Circuit held that failure to identify which specific voters that
would be harmed was “understandable.” Id. (“ . . . by their nature, mistakes cannot
be specifically identified in advance.”). That because Election Day is fixed, and
because human error is likely inevitable, the issues raised were “real and
imminent.” Id. at 574.
Here, the same logic applies. Plaintiffs have submitted testimony
establishing that there is a substantial likelihood that wait times for voting would
lengthen due to the adoption of P.A. 268. Furthermore, Plaintiffs have articulated
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which geographical and demographic populations are at greatest risk of suffering
this harm. Therefore, Plaintiffs have alleged facts establishing injury-in-fact.
There does not appear to be a dispute that Plaintiffs’ harm would be
redressed by the termination of P.A. 268. Accordingly, Plaintiffs have established
all of the elements required for Article III standing.
b. Standing to Bring Claims under the Voting Rights Act
Defendants argue that the Michigan State A. Philip Randolph Institute, as an
institutional plaintiff, does not have standing to bring a Voting Rights Act claim,
which grants a right of action to “aggrieved persons.” The argument asserts that
because the Institute is not a person, it therefore does not have standing. This
argument is without merit. Associations are able to bring claims under the Voting
Rights Act on behalf of their members if their members would have standing to
bring the claims themselves. Holder v. E.K. Hall, Sr., 512 U.S. 874 (1994)
(deciding a Voting Rights Act claim, brought by an institutional plaintiff, on the
merits). In this case, the Institute is bringing claims on behalf of its members.
Some of the Institute’s members are African-American and would have standing to
challenge P.A. 268. Accordingly, the Institute has standing to continue on the
Voting Rights Act claim.
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c. Standing to Bring Claims under the Americans with Disabilities Act
Defendant argues that Plaintiffs cannot bring the ADA claims because “none
of the individual Plaintiffs claim to be an individual covered by the ADA.” Dkt.
No. 20 at 19 (Pg. ID No. 554). Defendant is correct.
The ADA prohibits discrimination against “qualified individuals with
disabilities.” See 42 U.S.C. § 12132. A “qualified individual with a disability” is
defined as
an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity
42 U.S.C. § 12131(2). An individual is “disabled” if the person (A) has or mental
impairment that substantially limits one or more major life activities; (B) has a
record of such an impairment; or (C) is regarded as having such an impairment. 42
U.S.C. § 12102(1).
None of the listed Plaintiffs are described as having any disabilities as
recognized by the ADA. See Complaint, at 3–4 (Pg. ID No. 3–4). Therefore, these
claims aren’t likely to succeed unless the Plaintiffs can demonstrate that they are
entitled to continue under third-party standing.
A party seeking third-party standing must show that they have a “close
relationship” with the person who possesses the right, and there is a “hindrance” to
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the possessor’s ability to protect his own interests. Kowalski v. Tesmer, 543 U.S.
125, 130 (2004). No facts have been pled to establish that either exist in the present
case. Accordingly, it does not appear likely that Plaintiffs have standing for their
ADA claims.
E. The Likelihood of Success on the Merits
a. The Use of Metzger’s Expert Report
As a preliminary matter, the Court addresses the use of the Metzger Report
as a part of this analysis. It is common in cases such as this for judges to use expert
reports when hearing a motion for a preliminary injunction on a voting law. See
Husted II, 768 F.3d at 533–34; see also Ohio Organizing Collaborative, 2016 WL
3248030 at *3–8. Typically in these cases, expert reports are submitted by both
parties. Id. Here, only the Plaintiffs have submitted an expert report.
Plaintiffs submitted Metzger’s report with their Complaint on May 24, 2016.
Dkt. No. 1 (Exhibit 10). They filed the present motion three days later on May 27,
2016. Dkt. No. 4. Defendants filed a Response on June 17, 2016, along with an Ex
Parte Motion for Leave to File Excess Pages. See Dkt. Nos. 14, 15. Their final
amended Response Brief was filed on June 28, 2016. The final Amended Reply
Brief was not filed until July 6, 2016,1 forty-four days after the filing of the
1
Attached to the Reply Brief was the expert report of the Plaintiffs’ second expert
witness, Dr. Theodore Allen, Ph.D. At the July 14, 2016 hearing, the Court ruled
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Complaint. Dkt. No. 21. At no point during those forty-four days did Defendant
ever request leave of the Court to extend any deadlines or to hire an expert of their
own. It was not until July 13, 2016, the day before the Court held a hearing on this
matter, that Defendant made a request to conduct limited discovery. See Dkt. No.
22.
This motion has been pending for seven weeks. Time is of the essence. The
election is less than four months away, and election officials need to have adequate
opportunity to prepare. See Dkt. No. 20 (Thomas Affidavit at ¶ 10, Pg. ID No. 628)
(“On information and belief, individuals responsible for programming, coding and
printing ballots will begin setting ballots no later than 70 days prior to Election
Day (by August 30, 2016), and some may begin as early as the date the results of
the primary election are Certified by the County Board of Canvassers for locallevel candidates (by August 16, 2016 per MCL 168.822).”). The Defendant’s
request to reopen discovery and to present a counter-expert was not made in a
timely fashion. Therefore, the Defendant has waived the opportunity to submit an
expert report for consideration on the Motion. The Court shall evaluate the Motion
with the facts before it in the record.
that the report of Dr. Allen would not be taken into consideration because it was
not filed with the original motion, and thus it was untimely.
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b. Equal Protection Claim
“The right to vote is protected in more than the initial allocation of the
franchise. Equal protection applies as well to the manner of its exercise.” Bush v.
Gore, 531 U.S. 98, 104 (2000). Two aspects of “the manner of its exercise”
warrant special attention: “[t]he Equal Protection Clause applies when a state either
classifies voters in disparate ways or places restrictions on the right to vote.”
Obama for America, 697 F.3d at 428 (citing League of Women Voters of Ohio, 548
F.3d at 478).
“State regulations that do not treat similarly situated voters differently and
do not burden the fundamental right to vote are assessed through rational basis
review.” Husted II, 768 F.3d at 538.2 “On the other end of the spectrum, strict
scrutiny applies to state regulations that impose ‘severe’ burdens on the
fundamental right to vote.” Id. “For the majority of cases falling between these
extremes, we apply the ‘flexible’ Anderson-Burdick balancing test.” Ne. Ohio
Coal. for the Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012) (quoting
Obama for America, 697 F.3d at 429). The law at issue does, as discussed below,
Husted II was later vacated by the Sixth Circuit when the United States Supreme
Court stayed the decision pending a petition for writ of certiorari. The Sixth Circuit
noted that the preliminary injunction that was the subject of the appeal was limited
to the 2014 election, which no longer had any effect due to the Supreme Court’s
stay. The parties later settled. Accordingly, Husted II is not binding, but due to the
factual similarity, the Court considers Husted II as persuasive authority.
2
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to a certain extent burden the right to vote, although not severely. Therefore, the
Court finds the Anderson-Burdick test to be appropriate.
The Anderson-Burdick test provides as follows:
A court considering a challenge to a state election law must weigh
“the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate” against “the precise interests put forward by the
State as justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary to
burden the plaintiffs' rights.”
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze,
460 U.S. 780, 789 (1983)). “There is no ‘litmus test’ to separate valid from invalid
voting regulations; courts must weigh the burden on voters against the state’s
asserted justifications and ‘make the “hard judgment” that our adversary system
demands.’ ” Obama for America, 697 F.3d at 429 (quoting Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181, 190 (2008)). “Even a minimal burden ‘must be
justified by relevant and legitimate state interests sufficiently weighty to justify the
limitation.’ ” Husted II, 768 F.3d at 538 (quoting Crawford, 553 U.S. at 191).
1. The Asserted Injury
P.A. 268 eliminates the straight-party voting option on ballots. Prior to the
adoption of P.A. 268, voters could mark a single bubble to vote for all of the
candidates affiliated with a particular party. With that option eliminated, voters
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would have to mark each individual bubble for the candidates that they wish to
vote for.
Plaintiffs argue that the elimination of straight-party voting will burden all
voters, and disproportionately harm African-American voters who are more likely
to use straight-party voting. Plaintiffs contend that because voters will no longer be
able to vote for partisan candidates by marking a single bubble, it will take voters
longer to complete their ballots, thus causing longer wait times, and more
congestion. Moreover, Plaintiffs contend that confusion about the ballot could lead
to a disproportionate amount of African-American voters not having their votes
counted.
The Court finds that P.A. 268 presents a disproportionate burden on African
Americans’ right to vote. As discussed above, the Metzger Report shows that,
among the most populous counties in Michigan, there are “extremely high”
correlations between the size of the African-American voting population within a
district, and the use of straight-party voting in that district. Complaint (Exhibit 10,
Pg. ID No. 229–30). Accordingly, as Metzger concludes, the elimination of
straight-party voting would likely have a larger impact on African-American
voters.
Joseph Rozell, an officer in the Elections Division of the Office of the
Oakland County Clerk, testified that “[t]he use of straight party voting significantly
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reduces the amount of time that it takes a voter to mark his or her ballot and its
elimination will significantly increase the amount of time that it takes to vote the
ballot.” Rozell Declaration, ¶ 9 (Pg. ID No. 283). Rozell further notes that
according to the “MIT line optimization calculator,” the elimination of straightparty voting could increase wait time as much as forty minutes in Oakland County,
which is only 13% African-American. Id. at ¶ 14; Metzger Report at 6 (Pg. ID No.
225).
At oral argument, the Defendant argued that the State has taken measures to
combat long wait times by adding a $5 million appropriation, presumably to be
spent on more voting booths and staff. See Dkt. No. 1 (Exhibit 1, Pg. ID No. 31).
However, Defendant has not provided the Court any information on how this
money will be allocated amongst the different counties. For example, allocating the
money evenly will do nothing to mitigate the fact that African-Americans would
still be disproportionally harmed by P.A. 268. Moreover, it appears that the $5
million appropriation is woefully insufficient. There is evidence that it would
actually take $30 million, six times the amount appropriated, to adequately combat
the long lines. Dkt. No. 1 (Exhibit 13 at p. 5, Pg. ID No. 278).
Additionally, the new ballots would still include political party vignettes
across the top. The Gongwer Report, published on May 23, 2016, concluded that
voters that are used to straight-party voting may end up having their votes
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Pg ID 689
discounted due to voter confusion. Complaint (Exhibit 15, Pg. ID No. 306–07)
(“The concern is that voters accustomed to voting a straight-party ballot will circle
or make some type of mark next to the vignette in an attempt to cast their vote . . .
if the voter made a mark next to the vignette and voted in any other race, then the
machine would accept the ballot with no vote recorded for the partisan races and
the voter unaware of the error.”); see also Rozell Declaration, ¶ 18 (Pg. ID No.
284–85) (“The uniform opinion among the county clerks is that this is going to
cause great confusion and that voters, used to being able to vote straight-party, will
circle the party they want or otherwise seek to mark this new ballot display,
thinking that this is the way to vote straight-party as they have done in the past.”).
Thus, there is also a risk that votes will simply not be counted due to voter
confusion. Obviously, because African-American voters are statistically more
likely to use straight-party voting, they face a disproportionate risk of this harm as
well.
2. State Interests
The Defendant’s stated reasons for P.A. 268 are 1) to follow the trend
among states away from the straight-ticket voting option; 2) to demand voters be
more knowledgeable about candidates; and 3) to encourage voters to make
selections based on criteria other than party affiliation. Dkt. No. 20 at 34–35 (Pg.
ID No. 569–70). Defendant argues that the elimination of straight-party voting will
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Pg ID 690
help “preserve the purity of elections,” and “to guard against abuses of the elective
franchise.” Dkt. No. 20 at 27 (Pg. ID No. 562). These interests are tenuous at best.
First, the mere wish to follow “the trend” among other states is problematic
for several reasons. The record indicates that P.A. 268 would have a disparate
impact on African-Americans in the State of Michigan. The fact that some other
states do not allow straight party voting changes none of the facts that are before
this Court. Furthermore, and more importantly, the behaviors of other states are
irrelevant to the question of constitutionality. If the Ohio Legislature successfully
instituted poll-taxes and literacy tests without challenge, it would not change the
fact that poll-taxes and literacy tests are still clearly unconstitutional burdens on
the right to vote.
Second, Defendant has not demonstrated that P.A. 268 necessarily demands
that voters will rely on anything more than party affiliation while voting. As
depicted in the Complaint, the new ballot will still inform the voters of the party
affiliation of every partisan candidate. See Complaint at 13 (Pg. ID No. 13). Even
Defendant concedes that “[r]emoving the straight ticket option does not prevent
voters from voting only for members of one political party. Instead, it prevents the
voter from doing so with a single vote.” Id. at 34 (Pg. ID No. 569). Therefore, it
seems the only purpose behind P.A. 268 is to require voters to spend more time
filling more bubbles.
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Pg ID 691
Finally, Defendant has not demonstrated how straight-party voting has
damaged, or could possibly damage, the “purity” of the election process. There is
nothing “impure” or “disengaged” about choosing to vote for every candidate
affiliated with, for example, the Republican Party. A voter may base their vote on
any criteria he or she wishes, including party affiliation. See Tashjian v.
Republican Party of Connecticut, 479 U.S. 208, 214 (1986) (“The right to
associate with the political party of one’s choice is an integral part of this basic
constitutional freedom.”).
Moreover, the idea that voting one’s party reflects ignorance or
disengagement is, ironically, disconnected from reality. Voters may, and often do,
have substantive reasons for voting only for members of certain political parties.
Even if “disengaged” voting was problematic—and it is not—the Court finds that
P.A. 268 does nothing to encourage voters to be any more “engaged.” Unless there
are plans to use the $5 million appropriation to host free civics classes across the
state (which does not appear to be the case), there is nothing in the record to
suggest that changing the ballot form will encourage voters to become political
science scholars before voting. Therefore, functionally P.A. 268 is “disengaged”
from its own justifications.
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Pg ID 692
Accordingly, because the state’s interest do not outweigh the burdens
imposed by the law, Plaintiffs are likely to succeed on the merits of their Equal
Protection Claim.
c. Voting Rights Act
Section 2 of the Voting Rights Act provides that “[n]o voting qualification
or prerequisite to voting or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner which results in a denial
or abridgment of the right of any citizen of the United States to vote on account of
race or color . . . .” 52 U.S.C. § 10301(a). According to Plaintiffs, P.A. 268 violates
§ 2 because it “would have a disproportionately negative impact on AfricanAmerican voters.” Dkt. No. 4 at 43 (Pg. ID No. 360).
Section 2, unlike other federal legislation that prohibits discrimination, does
not require proof of discriminatory intent. Moore v. Detroit School Reform Bd.,
293 F.3d 352, 365 (6th Cir. 2002). Instead, a plaintiff need only show that the
challenged action or requirement has a discriminatory effect on members of a
protected group:
A violation of subsection (a) of this section is established if, based on
the totality of the circumstances, it is shown that the political
processes leading to nomination or election in the State or political
subdivision are not equally open to participation by members of a
class of citizens protected by subsection (a) of this section in that its
members have less opportunity than other members of the electorate
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Pg ID 693
to participate in the political process and to elect representatives of
their choice.
52 U.S.C. § 10301(b); Moore, 293 F.3d at 365; see also Mixon v. Ohio, 193 F.3d
389, 407 (6th Cir. 1999) (“Section 2 of the voting rights Act requires only a
showing of discriminatory effect.”).
In total, “Section 2 applies to any ‘standard, practice, or procedure’ that
makes it harder for an eligible voter to cast a ballot, not just those that actually
prevent individuals from voting.” Husted II, 768 F.3d at 552. Thus, Plaintiffs’
claim that P.A. 268 “disproportionately place[s] burdens on African-American
voters that make it harder for them to exercise their right to vote than other groups
of voters is encompassed within Section 2.” Id. “It does not matter that Plaintiffs
do not argue that they are completely prevented from voting.” Id.
Section 2 requires proof of two elements for a vote denial claim. “First, as
the text of Section 2(b) indicates, the challenged ‘standard, practice, or procedure’
must impose a discriminatory burden on members of a protected class, meaning
that members of the protected class ‘have less opportunity than other members of
the electorate to participate in the political process and to elect representatives of
their choice.’ ” Id. at 554; 52 U.S.C. § 10301(b). “Second, the Supreme Court has
indicated that that burden must in part be caused by or linked to ‘social and
historical conditions’ that have or currently produce discrimination against
members of the protected class.” Id. (citing Thornburg v. Gingles, 478 U.S. 30, 47
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Pg ID 694
(1986)). “In assessing both elements courts should consider the totality of
circumstances.” Id. (quotations omitted).
1. Discriminatory Burden on Members of a Protected Class
Plaintiffs must first prove that members of the protected class “have less
opportunity than other members of the electorate to participate in the political
process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). “The
benchmark is thus quite straightforward—under the challenged law or practice,
how do minorities fare in their ability ‘to participate in the political process’ as
compared to other groups of voters?” Husted II, 768 F.3d at 556. If the Plaintiffs
are able to demonstrate that the challenged law makes it disproportionately harder
for the protected class to vote, then the Plaintiffs will have satisfied this element.
When analyzing this first element, a district court may use expert testimony
and statistical reports submitted by the parties. Id. at 555 (finding no clear error in
the district court’s use of statistical evidence). In Husted II, the district court relied
on expert reports submitted by the plaintiff and the defendant to find that a law
limiting early voting disproportionately and negatively affected African-American
voters. Id. at 532. The Sixth Circuit affirmed this finding, noting that AfricanAmericans were more likely to use early voting, and its reduction would place
“disproportionate burdens” on their communities. Id. at 555.
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Pg ID 695
Here, as discussed supra, Plaintiffs have demonstrated that AfricanAmericans are more likely to use straight-party voting than white voters, and “its
elimination will disproportionately affect African-American voters.” Complaint
(Exhibit 10 at p.1, Pg. ID No. 220). Specifically, voter wait times will increase
greatly in African-American communities in comparison to other communities.
Accordingly, Plaintiffs have satisfied this element. Ohio Organizing Collaborative,
2016 WL 3248030 at *40 (finding that a burden sufficient to satisfy the AndersonBurdick test is sufficient to satisfy the first element of a Section 2 claim under the
Voting Rights Act).
2. Link to Social and Historical Conditions
The Plaintiffs now must show that the burden must in part be caused by or
linked to “social and historical conditions” that have or currently produce
discrimination against members of the protected class. Gingles, 478 U.S. at 47. In
doing so, the Court should look to the “totality of the circumstances” surrounding
the legislation. When analyzing this element, the Supreme Court has endorsed the
use of nine factors (the “Senate Factors”) as relevant to assessing “the totality of
the circumstances” in Section 2(b):
1. the extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in
the democratic process;
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Pg ID 696
2. the extent to which voting in the elections of the state or political
subdivision is racially polarized;
3. the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that
may enhance the opportunity for discrimination against the
minority group;
4. if there is a candidate slating process, whether the members of the
minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or
political subdivision bear the effects of discrimination in such
areas as education, employment and health, which hinder their
ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or
subtle racial appeals;
7. the extent to which members of the minority group have been
elected to public office in the jurisdiction;
8. whether there is a significant lack of responsiveness on the part of
elected officials to the particularized needs of the members of the
minority group; and
9. whether the policy underlying the state or political subdivision's
use of such voting qualification, prerequisite to voting, or standard,
practice or procedure is tenuous.
Gingles, 478 U.S. at 36–37. The Supreme Court added, however, that the Senate
Factors are “neither comprehensive nor exclusive” and that “ ‘there is no
requirement that any particular number of factors be proved, or that a majority of
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Pg ID 697
them point one way or the other.’ ” Id. at 45. The Court finds factors 2, 5, 6, 7, 8
and 9 as being relevant. See Dkt. No. 4 at 46 (Pg. ID No. 363).
i. Factor 2: the extent to which voting in the elections of the
state or political subdivision is racially polarized
This factor favors Plaintiffs. Racially polarized voting, “the situation where
different races . . . vote in blocs for different candidates,” Gingles, 578 U.S. at 62,
exists in Michigan. African-Americans in Michigan, as in the rest of the country,
tend to vote overwhelmingly for Democrats.
ii. Factor 5: the extent to which members of the minority group in
the state or political subdivision bear the effects of
discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively in
the political process
It’s no secret that racial discrimination in the state of Michigan has had
traumatic effects on education, employment and health in the African-American
community. Plaintiffs have provided evidence that African-Americans continue to
bear the harmful effects of past discrimination. Dkt. No. 4 at 47–49 (Pg. ID No.
364–66); Metzger Report, pp. 13–15 (Pg. ID No. 232–34). It is not difficult to
imagine how these effects, particularly in the employment setting, have made it
more difficult for African-Americans to participate in the political process. For
example, African-Americans are more likely to move from year to year, and are
less likely to be home owners. Metzger Report, p. 27 (Pg. ID No. 246). Thus,
making it more difficult to gain political capitol within a district. The Court finds
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Pg ID 698
that the effects of discrimination hinder African-Americans’ ability to participate
effectively in the political process.
iii. Factor 6: whether political campaigns have been characterized
by overt or subtle racial appeals
Recent political campaigns in Michigan, particularly in regions with large
black population centers, have been marred with direct and indirect racial appeals.
For example, during the Detroit mayoral election of 2013, the lone white
candidate, Mike Duggan—who would go on to win the election—was
characterized by an opponent, Tom Barrow, as “not having a Detroit accent.” Julie
Banovic, Drama unfolds at Detroit mayoral debate, WXYZ DETROIT (June 4,
2013, updated June 5, 2013).3 Another racial incident occurred in 2015, when in
Southfield, Michigan, flyers reading, “Let’s get the blacks out of Southfield,” were
circulated throughout the city on multiple occasions in the months before the
mayoral election. Gus Burns, Racist flyer: ‘Let’s get the blacks out of Southfield’,
MLIVE.COM (August 24, 2015).4
The racially charged rhetoric has not been limited to local and state election
campaigns. The 2016 U.S. Presidential Election has been punctuated with similar
3
Accessed at: http://www.wxyz.com/news/drama-unfolds-at-detroit-mayoraldebate.
4
Accessed at:
http://www.mlive.com/news/detroit/index.ssf/2015/08/racist_flyer_lets_get_the_bl
ac.html.
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2:16-cv-11844-GAD-MKM Doc # 24 Filed 07/21/16 Pg 31 of 37
Pg ID 699
racial appeals from its candidates. Some of those appeals have been implicitly
ethnocentric. Full text: Donald Trump announces a presidential bid, THE
WASHINGTON POST (June 16, 2015) (“When Mexico sends its people, they’re not
sending their best . . . They’re rapists. And some, I assume, are good people.”);5
Eugene Scott, Trump defends inflammatory comments, asks ‘Who is doing the
raping?’, CNN.COM (July 2, 2015);6 see also Brent Kendall, Trump Says Judge’s
Mexican Heritage Presents ‘Absolute Conflict’, THE WALL STREET JOURNAL (June
3, 2016);7 see also Leigh Ann Caldwell, After Orlando, Donald Trump Would
Expand Muslim Immigrant Ban, NBC NEWS (June 13, 2016) (“In a speech reacting
to the massacre in Orlando . . . Donald Trump doubles down on his proposal to ban
immigration of Muslims, and he expanded his proposal to ‘suspend immigration
from areas of the world where there is a proven history of terrorism against the
United States, Europe or allies.’ ”).8
5
Accessed at: https://www.washingtonpost.com/news/postpolitics/wp/2015/06/16/full-text-donald-trump-announces-a-presidential-bid/
6
Accessed at: http://www.cnn.com/2015/07/01/politics/donald-trump-immigrantsraping-comments/
7
Accessed at: http://www.wsj.com/articles/donald-trump-keeps-up-attacks-onjudge-gonzalo-curiel-1464911442
8
Accessed at: http://www.nbcnews.com/storyline/orlando-nightclubmassacre/donald-trump-would-expand-muslim-immigrant-ban-n591416
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Pg ID 700
Other appeals have implicitly used race to capitalize on controversy here in
the state of Michigan and elsewhere. See Kathleen Gray, Clinton at NAACP event:
I’m candidate to tackle racism, DETROIT FREE PRESS (May 1, 2016) (“Democratic
presidential candidate Hillary Clinton appealed to a largely African-American
crowd in Detroit on Sunday, saying that she was the best candidate to address the
problems of systemic racism in America.”);9 Janell Ross, Bernie Sanders says
white people don’t know what it’s like to live in a ‘ghetto.’ About that…, THE
WASHINGTON POST (March 7, 2016).10 This is all in addition to the emergence of
the “Black Lives Matter” Movement, and the increased attention to relationships
between minority communities and law enforcement. See Nick Gass, Milwaukee
sheriff at RNC: ‘Blue lives matter’, POLITICO.COM (July 18, 2016).11
In total, race and ethnicity have been brought to the forefront in
contemporary political campaigns. Accordingly, this factor favors the Plaintiffs.
9
Accessed at: http://www.freep.com/story/news/politics/2016/05/01/democraticfront-runner-clinton-speak-detroit/83796232/
10
Accessed at: https://www.washingtonpost.com/news/thefix/wp/2016/03/07/bernie-sanders-says-white-people-dont-know-what-its-like-tolive-in-a-ghetto-about-that/
11
Accessed at: http://www.politico.com/story/2016/07/rnc-2016-sheriff-daveclarke-225768
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2:16-cv-11844-GAD-MKM Doc # 24 Filed 07/21/16 Pg 33 of 37
Pg ID 701
iv. Factor 7: the extent to which members of the minority group
have been elected to public office in the jurisdiction
This factor is neutral. As Plaintiffs point out, although President Obama has
won the state of Michigan twice, only one African-American has ever been elected
to a major statewide partisan office in Michigan. However, as Defendant points
out, many elected judges—including the Chief Justice of the Michigan Supreme
Court—are African-American. Furthermore, there have been numerous AfricanAmerican representatives in local governments and the State Legislature.
v. Factor 8: whether there is a significant lack of responsiveness
on the part of elected officials to the particularized needs of
the members of the minority group
Plaintiffs point solely to the recent Flint Water Crisis as illustrative of the
significant lack of responsiveness to the needs of minority groups. While the Flint
Water Crisis certainly seems symptomatic of a government that is indifferent to the
needs of the African-American community—the city of Flint, Michigan being a
majority African-American city—it alone is not enough to demonstrate that there is
a significant lack of responsiveness on the part of elected officials. Ohio
Organizing Collaborative, 2016 WL 3248030 at *42–43. While the state
government seemed to fail African-American residents in Flint, the same
administration provided support to African-American residents during the Detroit
bankruptcy—a city that is over 80% African-American—in 2014. See Chris
Isidore, Detroit gets $195 million closer to salvation, CNN MONEY (June 20, 2014)
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Pg ID 702
(“Gov. Rick Snyder will sign a series of bills Friday to give the city the state funds,
a key component of Detroit’s plan to wrap up its bankruptcy reorganization later
this year.”).12 Accordingly, Plaintiffs have failed to demonstrate that this factor
weighs in their favor.
vi. Factor 9: whether the policy underlying the state or political
subdivision's use of such voting qualification, prerequisite to
voting, or standard, practice or procedure is tenuous
As described above, the state’s justifications for P.A. 268 are tenuous.
Accordingly, this factor favors Plaintiffs.
Thus, four of the six relevant Senate Factors are favorable to the Plaintiffs.
Having considered the Senate Factors, the Court now turns to the “totality of the
circumstances” analysis of a VRA § 2 claim.
The real question that the Court must answer is whether the burdens caused
by P.A. 268 “are in part caused by or linked to ‘social and historical conditions’
that have produced or currently produced discrimination against African
Americans” in Michigan. Husted II, 768 F.3d at 557. This question is unavoidably
answered in the affirmative. African-Americans are much more likely to vote
Democrat than other ethnic groups, and many feel this is largely due to racially
charged political stances taken by Republicans on the local, state and national level
since the post-World War II era. Philip Bump, When did black Americans start
Accessed at: http://money.cnn.com/2014/06/20/news/economy/detroitbankruptcy-state-aid/
12
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Pg ID 703
voting so heavily Democratic?, THE WASHINGTON POST (July 7, 2015).13 Using
straight-party voting is merely an efficient means of expressing identity with the
Democratic Party.
Moreover, the disproportionate burdens of P.A. 268 are inexorably linked to
racially discriminatory employment practices and housing policies that have
created deeply segregated communities across Michigan. African-American
communities will be impacted harder by P.A. 268 specifically because our
metropolitan areas are so racially polarized. The racial polarization of our
metropolitan areas can be tied directly to racist policies such as redlining and
housing discrimination.
In sum, the Court concludes that P.A. 268 likely will “interact[] with the
historical and social conditions facing African Americans” in Michigan “to reduce
their opportunity to participate in” Michigan’s political process “relative to other
groups of voters.” Ohio Organizing Collaborative, 2016 WL 3248030 at *44.
Accordingly, Plaintiffs are likely to succeed on the merits of their Voting Rights
Act claim.
Accessed at: https://www.washingtonpost.com/news/thefix/wp/2015/07/07/when-did-black-americans-start-voting-so-heavily-democratic/
13
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Pg ID 704
F. Irreparable Injury
“When constitutional rights are threatened or impaired, irreparable injury is
presumed. A restriction on the fundamental right to vote therefore constitutes
irreparable injury.” Obama for America, 697 F.3d at 436 (citations omitted). The
case at bar deals with the right to vote, and thus this factor is presumed satisfied.
Id.
G. Irreparable Harm to the State
Defendant argues that the State’s interest in enforcing its legislation is
paramount in this matter. However, as the Sixth Circuit explained in Obama for
America,
While states have “a strong interest in their ability to enforce state
election law requirements,” Hunter, 635 F.3d at 244, the public has a
“strong interest in exercising the ‘fundamental political right’ to vote.”
Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006)
(quoting Dunn, 405 U.S. at 336, 92 S.Ct. 995). “That interest is best
served by favoring enfranchisement and ensuring that qualified voters'
exercise of their right to vote is successful.” Hunter, 635 F.3d at 244.
697 F.3d at 436–37; see also Husted II, 768 F.3d at 560.
Considering that the burden on the state would be to merely reinstate the
ballots used in the 2014 election cycle—and the record does not show that there
were any problems with the old ballot—this factor also favors Plaintiffs.
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Pg ID 705
H. The Public Interest
Here, an injunction would protect the public against burdens on the right to
vote. There would be no harm to the greater public in having the state continue to
use the 2014 ballot form. Accordingly, this factor is satisfied.
V. CONCLUSION
In total, all four preliminary injunction factors favor the Plaintiffs.
Accordingly, for the reasons discussed herein, the Court will GRANT the
Plaintiffs’ Motion for preliminary injunction [4].
IT IS SO ORDERED.
Dated: July 21, 2016
Detroit, MI
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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